QAZI MUHAMMAD HUSSAIN SIDDIQUI, MEMBER -- Precisely, the facts leading to this appeal are, that the appellant had joined the Pakistan Railways as T.C.R. On 01.05.1963. Subsequently, while he had been working as Reservation Supervisor in RS-11,Without any formal promotion, he was temporarily assigned the higher duty of Senior Reservation Supervisor in BS-16 on 18.08.1985, to which he was promoted on 06.03.1989. He was then ' transferred from Karachi and appointed to hold the post of JCO-II, Headquarters Office, Lahore in his present pay scale pending clearance by D.P.C. And approval of the competent authority, vide order dated 03.10.1996. In the said order, it was also stated that such appointment of the appellant was without prejudice to claim of seniority and regular promotion over his seniors, if any, eligible for promotion to the post of JCO-II (BS-17) and that he would not be entitled to the monetary benefit of BS-17 post and his resumption on this post would amount to the acceptance of these conditions. The appellant joined his duties as JCO-II in BS-17 and performed his duties as such till his retirement on superannuation on 15.01.1998.
2. The grievance of the appellant is twofold. According to him, the respondents deducted a sum of Rs. 20,000/- from his pensionary benefits and had also not paid to him the pay and allowances of the post of JCO-II which he held from 03,. 10.1996 till his retirement on 15.01.1998. He approached the respondents through a number of representations for redress of his grievance, but to no avail as the respondents did not respond to his representations, the last one being dated 12.2.1998. He, therefore, preferred this appeal under Section 4 of the Service Tribunals Act, 1973 on 29.4.1998, praying as under;- "(a) That this Hon'ble Tribunal may be pleased to grant the back benefits of the higher post of BPS- 17 for the period from 20.11.1996 to 15.01.1998 for the period the higher post was actually held by the appellant.
(b) That to refund/pay the deducted amount of Rs. 20,000/- which. Was illegally and irregularly deducted from the settlement dues of the appellant.
(c) To allow/grant back benefits of the higher post of SRS/Kyc (Senior Reservation Supervisor, Karachi City) BPS-16 from 19.08.1985 to 06.03.1989, the date of utilization of the appellant in higher scale i.e. BPS-16 and not from the date of clearance of D.P.C. Of BPS-16 i. e. 06.03.1989.
(d) Any other relief which this Honourable Court/Tribunal may deem fit and proper under the circumstances of the case."
3. As per office note of the Assistant Registrar, the appear appeared to be premature. However, after examining the record, the appeal was admitted on, 17.6.1998 for hearing, subject to all just exceptions.
4. The respondents resisted the appeal by taking legal objection that the case of the appellant regarding grant of back benefits was under consideration, therefore, the appeal was premature and was liable to be dismissed. It was stated that in 1985, the appellant was assigned duty of higher post of Senior Reservation Officer in BS-16, as stopgap local arrangement, but he was, promoted to that post in 1989. Similarly, the appellant was appointed as stop-gap local arrangement to the post of JCO-II (BS-17), on which post he performed hie duties till his retirement on 15.1.1998.
5. We have heard the learned counsel for the parties and perused the record carefully.
6. The learned counsel for the appellant argued that the appellant was entitled to the benefits of BS-16 for the period from 19.08.1985 to 1989 even if he was not promoted during this period when he had held the higher post; that the appellant was also entitled to the benefits of BS-17 for the period from 03,10,1996 till his retirement on 15.1.1998 even if he was not promoted to that post, as he had performed the duties of that post, which was a higher post. In support of his arguments that the appellant was entitled the benefits of working against the higher post of BS- 16 and BS-17 without any promotion, the learned counsel for the appellant relied on (1) PLD 1991 Supreme Court 1118. (2)
PLD 1991 Supreme Court 35, (3) 1998 SCM R 736, (4) Supreme Court's judgment dated 18,9.1996 in C.P.
No, 455-' R/1985 which judgment is based on C.P. No. 23/1985, (4) Decision of Lahore High Court dated 18.2.1997 in Appeal/Revision No. W.P. 18430/1996, (5) Order of Wafaqi Mohtasib dated 29:5.1996 in Aftab Ahmed's complaint. The learned counsel for the appellant further relied on Rule No. 312, Page No. 103 of the Personnel Manual Vol. I of Note-2, which is reproduced as under:- "Railway servants put to officiate in a post carrying higher scale of pay should be considered as officiating in a post of greater responsibility as different standard of responsibility IPSO-Facto held eligible for the grant of officiating pay."
The learned counsel for the appellant also argued that the appellant had been discriminated against, as in the identical cases of holding charge of a higher post, following employees had been grated back benefits for holding higher post, but the appellant was not granted the back benefits, he was so entitled to and a sum of Rs. 20,000/- was also deducted in the pensionary settlement account:--
(i) Mr. Aftab Ahmed JCO (Rtd.) Lhr.
(ii) Merajuddin Mirza JCO (Rtd.) Lhr.
(iii) Ismail JRO (Rtd.) Lhr.
(iv) Abdul Bari JCO/O/S Lhr.
(v) G.M. Kausar ACO-Quetta.
(Vi) Mr. Aslam ACO-Quetta.
(vii) Saeed Ahmed RS, Kyc."
7. On the basis of the above arguments, the learned counsel for the appellant pleaded that the respondents be directed to refund to the appellant the amount of Rs. 20,000/- deducted from final settlement of his pensionary benefits. And they be also directed to pay back benefits of the post of JCO-II BS-17 on which the appellant had performed duties from 19.08.1985 till his retirement.
8. The learned counsel for the respondents reiterated the legal objection that the appeal was premature and not maintainable as the matter for grant of back benefits to the appellant was under consideration and he, without waiting for decision of his case, rushed to the Tribunal without any order against him and without any departmental appeal. The learned counsel for the respondents did not dispute the appellant's working against higher posts in BS- 16 and BS-17, but feebly argued that in the order dated 03.10.1996, it was mentioned that the appellant was transferred and appointed to hold the post of JCO-II Headquarters Office, Lahore in his present pay and scale pending decision by the D.P.C. And approval of the competent authority and that he would not be entitled to any monetary benefits. However, he admitted in his arguments that in seven identical case of (Aftab Ahmed and others), benefits of appointment against higher post were given to such employees.
9. We have carefully considered the above arguments of both sides and perused the authorities cited at the bar as also the material available on record including the personal files of the above- mentioned employees, placed before us by the learned counsel for the respondents during the arguments.
10. Reverting to the arguments of the learned counsel for the respondents about the appeal being premature, we find substance in it. The appellant had filed this appeal without any original or appellate order made by a departmental authority in respect of the back benefits including the amount of Rs. 20,000/- deducted from his pensionary settlement account. He has filed this appeal under Section 4 of the Service Tribunal Act, 1973, but he has not complied with the provisions of the said section under which he was required to i.e any adverse against him and a departmental appeal against such order, but he has not approached this Tribunal without exhausting such remedies. As such, prima-facie, his appeal was not maintainable, but there is It of material available on record which supports the claim of the appellant about his entitlement to the benefits of appointment to holding charge of higher post of BS-16 and BS-17 respectively. Notwithstanding the fact that he was promoted to BS-16 for about four years and seven months after his stop-gap appointment to the post of Senior Reservation Officer BS-16 and his non-promotion to JCO-II in BS- 17 till his retirement, he appears to be entitled to the back benefits of BS-16 and BS-17, as claimed by him. However, due to legal, impediment about maintainability of his appeal, as mentioned above, we shall refrain from deciding the appeal at our level and ask the respondents to decide the case of the appellant in the light of the authorities, documents, arguments and admitted position of payment in identical cases, as mentioned above.
11. We shall, therefore, dispose of this appeal with the direction to the respondents to consider the case of the appellant within a period of three months.
12. The appeal stands disposed of accordingly with no order as to costs.
13. Copies of this judgment be sent to the parties under registered cover and to the relevant quarters as per Rule-21 of the Service Tribunals (Procedure) Rules, 1974.